§ 10-3-24. Material breach of agreement — Remedies.
(a)(1) In an employment or consumer arbitration that requires, either expressly or through
application of state or federal law or the rules of the arbitration provider, that
the drafting party pay certain fees and costs during the pendency of an arbitration
proceeding, if the fees or costs required to continue the arbitration proceeding are
not paid within thirty (30) days after the due date, the drafting party is in material
breach of the arbitration agreement, is in default of the arbitration, and waives
its right to compel the employee or consumer to proceed with that arbitration as a
result of the material breach.
(2) The arbitration provider shall provide an invoice for any fees and costs required
for the arbitration proceeding to continue to all of the parties to the arbitration.
The invoice shall be provided in its entirety, shall state the full amount owed and
the date that payment is due, and shall be sent to all parties by the same means on
the same day. To avoid delay, absent an express provision in the arbitration agreement
stating the number of days in which the parties to the arbitration must pay any required
fees or costs, the arbitration provider shall issue all invoices to the parties as
due upon receipt. Any extension of time for the due date shall be agreed upon by all
parties.
(b) If the drafting party materially breaches the arbitration agreement and is in default
under subsection (a) of this section, the employee or consumer may unilaterally elect
to do any of the following:
(1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.
If the employee or consumer withdraws the claim from arbitration and proceeds with
an action in a court of appropriate jurisdiction, the statute of limitations, with
regard to all claims brought or that relate back to any claim brought in arbitration,
shall be tolled as of the date of the first filing of a claim in any court, arbitration
forum, or other dispute resolution forum;
(2) Continue the arbitration proceeding, if the arbitration provider agrees to continue
administering the proceeding, notwithstanding the drafting party's failure to pay
fees or costs. The neutral arbitrator or arbitration provider may institute a collection
action at the conclusion of the arbitration proceeding against the drafting party
that is in default of the arbitration for payment of all fees associated with the
employment or consumer arbitration proceeding, including the cost of administering
any proceedings after the default;
(3) Petition the court for an order compelling the drafting party to pay all arbitration
fees that the drafting party is obligated to pay under the arbitration agreement or
the rules of the arbitration provider; or
(4) Pay the drafting party's fees and proceed with the arbitration proceeding. As part
of the award, the employee or consumer shall recover all arbitration fees paid on
behalf of the drafting party without regard to any findings on the merits in the underlying
arbitration.
(c) If the employee or consumer withdraws the claim from arbitration and proceeds in a
court of appropriate jurisdiction pursuant to subsection (b)(1) of this section, both
of the following apply:
(1) The employee or consumer may bring a motion, or a separate action, to recover all
attorneys' fees and all costs associated with the abandoned arbitration proceeding.
The recovery of arbitration fees, interest, and related attorneys' fees shall be without
regard to any findings on the merits in the underlying action or arbitration; and
(2) The court shall impose sanctions on the drafting party in accordance with § 10-3-25.
(d) If the employee or consumer continues in arbitration pursuant to subsections (b)(2)
through (4) of this section, inclusive, the arbitrator shall impose appropriate sanctions
on the drafting party, including monetary sanctions, issue sanctions, evidence sanctions,
or terminating sanctions.